Recently, former president Trump turned down the opportunity to testify at his own impeachment hearing.

However, given the magnitude of the charges, could he be compelled to testify by subpoena? Or could Trump plead the fifth, thereby avoiding having to testify against himself?

The basis for this question is that there's a bit of debate upon whether impeachment itself is a legal process or a political one. The criteria by which a president is impeached is deliberately vague, but the penalties for a successful impeachment are partially legal and partially political (i.e. removed from office, barred from serving again; but this does not otherwise deprive the defendant of their liberty (though other legal charges may)). Regardless, because impeachment does not have any stated criteria other than, "Treason, bribery, or other high crimes and misdemeanors," those penalties could theoretically come about simply by virtue of Congress holding a 2/3 majority of an opposing party.

Given that the 5th amendment protects a defendant from being a witness against themselves in a criminal proceeding, could Trump exercise that protection to avoid being compelled to testify before Congress?

1 Answer 1



Impeachment proceedings (as are all activities of Congress) are legal proceedings in that they are enabled by the Constitution.

While it is true that they are not judicial proceedings, the activities of the legislature as with the executive (like a police interview) and judiciary (like a trial) are legal processes and the Fifth Amendment rights apply.

During the McCarthy “red scare” era, pleading the fifth was commonplace by witnesses to Congressional hearings.

However, pleading the fifth does not mean you can avoid testifying. If subpoenaed you would need to turn up and answer the questions, pleading the fifth when the answer could incriminate you in a criminal matter.

  • 3
    But in an impeachment proceeding, like any other civil legal proceeding, an adverse inference may be drawn from a failure to testify, and the official facing impeachment may be penalized non-criminally in the context of the proceedings for refusing to testify. Typically, in a civil case, pleading the 5th Amendment comes very close to confessing judgment on the claim asserted (although, of course, this is fact dependent).
    – ohwilleke
    Feb 5, 2021 at 2:22
  • 3
    Also, to be clear, Trump could be compelled by Congress pursuant to a subpoena to attend the hearing and to invoke the 5th Amendment on a question by question basis. The 5th Amendment is a protection against having to testify against yourself, not against having to show up to a hearing, even if you have indicated in advance that it would be futile to attempt to obtain your testimony.
    – ohwilleke
    Feb 5, 2021 at 2:26

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